Courts and Politics – Page 2 – The Law and Policy Blog

The coming constitutional excitements in the United States

The last post over at my Substack was fairly UK-centric – indeed Anglocentric – in its approach to the issue of constitutional crises.

That post averred that we do not often have constitutional crises in the United Kingdom though we (too) frequently have constitutional dramas and excitements. But it also warned that we are never far from a constitutional crisis, and that only self-restraint and deference to checks and balances have stopped constitutional tensions converting into contradictions.

Glancing at the United States, however, the situation appears to be far more serious. Over the Atlantic there seems to be a fundamental threat to constitutionalism, the effects of which may become very obvious in the coming year.

A few years ago, a complacent liberal might have assured you that in a democracy the perils of illiberalism could be dealt with in two simple ways.

First: politically one could defeat illiberals by winning struggles within political parties and by winning elections between political parties.

Like the proverbial poor, illiberals are always with us, but they could be kept away from power by gatekeepers and electoral prowess.

But what happens when the gatekeepers fall away and then the legitimacy of elections is itself contested? When the electoral wells are poisoned?

This is the immense problem created by the Trumpite lie about the “stolen election”. What good is defeating illiberals in a general elections – and being seen to defeat illiberals by sizeable votes – if the legitimacy of those elections is denied?

The old certainty that the best way to defeat illiberals is by defeating them at the ballot box is no longer sound if the ballot box is not respected.

Second: even if the illiberals gained executive or legislative power, the individual would still have the protections of their civil liberties as guaranteed by an independent judiciary. In this way the minority would be protected against any apparent majoritarianism.

But what if the very notions of civil liberties and of an independent judiciary are also trashed? What if the systems of rights and of their enforcement are, like elections, robbed of their legitimacy?

Here the illiberals are fighting the second front of their overall campaign. Just as electoral verdicts against them are dismissed, so are judicial verdicts. Their objective is to have no constraints on what they can when they have power, to have nobody who can say “no”.

Of course, the illiberals have not so far won either of these battles. Trump and his supporters are still out of presidential power, whatever they say about elections results. Illiberals have also not discredited the systems of rights and their enforcement (and indeed they have mixed feelings, given they often wish to rely on their “right to bear arms” – as they interpret it).

But these parameters of constitutional action are being continuously contested, even if they are not yet destructed.

If the results of elections are not accepted, and if the rulings of the courts are respected, then the conventional political and judicial checks on illiberalism may be insufficient.

And if so, what happens?

Nobody knows – and even best guesses may not be accurate. Like Withnail and Marwood, we could be drifting into the arena of the unwell, making enemies of our future.

This post was prompted by the discussions about whether Trump should be disallowed on various ballots by reason of his participation as an “insurrectionist”.

Such an huge intervention would have implications.

The normal inclination would be to oppose such a restriction on political choice: that the way to defeat Trump is at the ballot box and, if then appropriate, in the courts that apply electoral law.

But, comes the response, what if Trump and his supporters flatly reject the legitimacy of the ballot box and the courts applying election law? What if that standard liberal constitutionalist stance is no longer valid?

It is a difficult if not impossible question to answer, at least by the application of usual liberal principles.

And so the new year is going to be interesting.

2024 has the potential to be a very exciting year constitutionally.

And as we know, constitutional law should not be exciting, it should be dull.

Brace.

Best wishes for the new year, and thank you for your support and following.

A role-reversal? – a footnote to yesterday’s post

1st December 2023

Discussing yesterday’s post with a long-suffering friend, the following thought came to mind.

In the Rwanda judgment, the Supreme Court goes into detail as to the work needed on the ground to make the removals policy robust and practical; and, in turn, the government is seeking to use parliament to simply declare a policy legal instead of illegal.

This seems quite the role-reversal: the court setting out what needs to be done as a matter of policy, instead of the executive and the legislature, and the executive threatening to use the legislature to decide whether something is lawful.

Strange, if you think about it.

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The three elements of the Rwanda judgment that show how the United Kingdom government is now boxed in

30th November 2023

This post is about three elements of the judgment of the Supreme Court on the Rwanda policy – and how the Supreme Court decision means that the Rwanda scheme cannot be saved by legislation and treaties alone.

These three parts indicate the difficulties for the government if they seek to use legislation so as to circumvent the judgment.

And two of these parts are about things which the Supreme Court did not decide.

The first of these is about, of course, the European Convention on Human Rights (ECHR).

Here it should be noted that the court had granted permission for the Convention to be raised as a ground of cross-appeal:

(The government appealed – as they lost at the Court of Appeal – but some of the asylum seekers cross-appealed on points on which they had lost.)

The Supreme Court dutifully set out the Convention point in two paragraphs of the judgment:

You will see, however, that even in these paragraphs the court is careful to set out the Convention position alongside other applicable laws.

The court then makes this point about other applicable laws explicit:

In essence, the court is stating that the ECHR point does not stand alone.

And then in paragraph 106, towards the end of the judgment, the court says (with emphasis added):

This means that even if the ECHR did not apply directly, and even if the Human Rights Act did not exist, then the court would have decided the case the same way anyway, because the key legal principle is in other other applicable law.

That key legal principle is non-refoulement – that is the legal rule that requires that refugees are not returned to a country where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion. The court found on the evidence before it that there was such a risk if the asylum-seekers were removed to Rwanda.

It thereby follows that if the government were to bring forward legislation to limit the effect of the Convention in Rwanda removal cases it would not make any difference. The courts would just rely on other laws for the same point.

And this brings us to the second part, which is rather fascinating.

This is the thought-provoking – indeed, provocative – paragraph 25:

Now this is quite the passage.

So-called “customary international law” is, almost by defintion, outside the power of any one nation state to change. It will apply anyway. As the court says:

“the significance of non-refoulment being a principle of customary international law is that it is consequently binding upon all states in international law, regardless of whether they are party to any treaties which give it effect.”

A nation state may break that law, but they cannot unilaterally change it.

In other words there is no legislation whatsoever the government can bring forward that will mean that this rule would not apply to the United Kingdom.

Deftly, the court ends this point with “as we have not been addressed on this matter, we do not rely on it in our reasoning”.

This suggests that if the Rwanda policy is re-litigated to the Supreme Court, even if the government somehow excludes all the applicable legal instruments (and not just the ECHR and Human Rights Act) then the court may well still hold that the policy is unlawful, on the basis of customary international law.

That is quite the marker.

The third part is about what the court did decide.

Here paragraph 105 is worth a very close look:

Here the court is stating that mere formal changes – such as placing the Rwanda policy on the basis of a treaty, as opposed to a flimsy MoU with no legal effect – will not, by themselves, render the policy lawful.

A treaty – which would provide for enforceable rights for individuals – would be necessary, but it would not be sufficient.

The real change required is that there be compelling evidence that, in practice, the Rwanda scheme will “produce accurate and fair decisions”.

And this is also outside of the scope of what the government can push through parliament: for no mere Act of Parliament can by itself change the situation on the ground in Rwanda.

Either the Rwanda scheme can be shown to produce the results required by the applicable laws – and, if need be, customary international law – or it cannot.

And if it cannot, it would seem that the Supreme Court will again hold the policy to be unlawful, whatever legislation is passed at Westminster.

This case now comes down to evidence, not law.

Without relying on the ECHR the Supreme Court has placed the government in a rather difficult situation if the Rwanda scheme is to continue.

It would seem that only actual improvements in practical policy can now save the scheme – not clever-clever “notwithstanding” legislation.

And for a Supreme Court that had developed a reputation for being deferent to the executive and legislature on “policy” matters, this is a remarkable position.

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On yesterday’s Supreme Court judgment on the Rwanda policy

16th November 2023

Yesterday the Supreme Court handed down its appeal judgment in the Rwanda policy case.

For an informed view on the case, it is worth taking the time to watch Lord Reed, the President of the court, giving the summary of the judgment:

A court-approved summary can also be read here – and the full judgment is here.

I wrote a couple of quick posts on the case yesterday for the mainstream media.

At the Financial Times, I did an “instant insight” (and it certainly had one of those two qualities) which emphasised two things which were immediately evident about the case.

First, it was remarkable – and, to me, a surprise – that the current Supreme Court under Lord Reed, which is generally regarded as deferent to the executive and legislature on “policy” matters, went unanimously against the government.

In essence, and to echo John Kander and Fred Ebb’s New York, New York: if a government cannot win on a “policy” matter before a Lord Reed Supreme Court, it cannot win that case anywhere.

Second, the court – perhaps showing more political sense than the entire cabinet – deftly avoided resting the case on the European Convention of Human Rights or the Human Rights Act.

Both instruments were, of course, mentioned in passing – but the effect of the judgment would have been just the same had neither instrument applied to the facts.

The court instead had regard to a range of other legal instruments and sources of law, including what is called customary international law.

Over at Prospect, I approached the judgment from a different perspective, and I averred that the government could have won the case had they wanted to do so – by which I meant that the government could have negotiated a treaty with Rwanda that would have addressed the concerns ultimately expressed by the Supreme Court, instead of relying on a flimsy Memorandum of Understanding.

And this was not just a commentator-with-hindsight, it was what the government had been explicitly warned about a year ago by a House of Lords committee:

Some other commentators are not with me on this point – and they say that even a substantial treaty with Rwanda, which ensured there was no risk of asylum seekers being wrongly returned to their country of origin, may not have been enough to save the policy in this appeal.

Perhaps they are right and more would have been needed, but on any view such a treaty would have been necessary, if not sufficient: a non-enforceable MoU was inherently inadequate. It would not have been relied upon had the government been actually serious about this policy.

I am now thinking about writing a detailed post on the case from a constitutionalist perspective; but in the meantime, let me know below what you think about the decision and what you reckon to be its significance.

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The courts have already deflated the Rwanda policy, regardless of the Supreme Court judgment next Wednesday

10th November 2023

Even if the United Kingdom government wins on the lawfulness of the policy, it has already lost in respect of procedure

Those interested in day-to-day politics in the United Kingdom are now looking to next Wednesday for the Supreme Court decision to be handed down on the lawfulness of the Rwanda policy.

The conventional wisdom is that if the current Home Secretary is still in post on Wednesday, a Supreme Court defeat for the government may be the basis for the Home Secretary to resign and campaign for the United Kingdom’s departure from the European Convention on Human Rights, or something.

Nobody outside the court will know the result in advance and so the hand-down will be a moment of drama and excitement.

On balance, any legal challenge to “policy” – that is an approach to general political problems – is likely to fail.

For an entire policy to be quashed it would require that each and every possible application of the policy in any concrete situation must be unlawful – that there is nothing that can be done to save a decision in a particular case.

Courts are reluctant to do this – not least because policy is usually the province of politicians, and judges will not want to trespass.

And the current Supreme Court under Lord Reed often seems cautious in dealing with “policy” challenges.

There perhaps are reasons why this particular policy may be unlawful in the round – and if it was not arguable that the policy was itself unlawful the Supreme Court would not have heard the case – but it would not be shocking if the Supreme Court sides with the government and holds that some applications of the policy may be lawful, subject to certain conditions.

And here is the nub of the situation, which many in politics and the media seem to be overlooking: the courts have already held that there are strict and onerous conditions in particular cases.

These conditions are so strict and so onerous, it may well be that few if any asylum seekers will be relocated to Rwanda, even if the Supreme Court rules that the general policy is legal.

Followers of this blog may recall posts about this at the time of the initial High Court decision and the Court of Appeal decision:

As this blog has before averred, the government can both win and lose a legal case at the same time.

And even if the government wins on whether the policy is lawful, the procedural protections already insisted upon by the courts in the application of the Rwanda policy will present difficulties for a Home Secretary after next Wednesday.

Whoever that is.

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Understanding the significance of today’s Court of Appeal decision on the Rwanda removals policy

29th June 2023

Today the Court of Appeal ruled that the United Kingdom government’s controversial Rwanda removals policy was unlawful.

The judgment is here and there is a court-prepared summary here.

By saying the policy was itself unlawful, this means that each and every possible removal of any asylum seeker to Rwanda for their asylum application to be processed is currently unlawful. There are no current circumstances where a removal would be lawful.

The reason for the unlawfulness is that Rwanda is not a safe place for the processing of asylum claims:

This goes beyond the decision of the High Court that each particular removal happened to unlawful, on a case-by-case basis, because an appropriate process had not been followed. The High Court had said that the general policy was lawful, but each application of it so far had been unlawful.

The Court of Appeal now says that even the policy was unlawful. No removal, even with elaborate procedural compliance, would be allowed.

So both in practice and in the round the Rwanda removals policy has been held unlawful.

Opponents of the policy can celebrate – to an extent.

Here are some further thoughts about what this decision signifies and does not signify.

First, and from a practical perspective, the government’s far bigger problem was the initial High Court judgment. It does not really matter if a policy is (theoretically) lawful if the procedural protections required for each individual case are such that, in practice, removals are onerous and extraordinarily expensive.

I blogged about these practical problems when the High Court handed down its judgment:

Today’s ruling that the policy itself is unlawful makes no real difference to the government’s practical predicament with the policy in individual cases.

And the government appears not to have appealed the adverse parts of the High Court judgment.

The Home Secretary, and her media and political supporters, can pile into judges and lawyers because of today’s appeal judgment. But their more serious problems come from the last judgment, and not this one.

The Home Office is simply not capable or sufficiently resourced to remove many, if any, asylum seekers to Rwanda even if the policy was lawful.

Second, the Court of Appeal decision today is likely to be appealed to the Supreme Court.

And, from an initial skim read of the relevant parts of the judgment, one would not be surprised if the Supreme Court reverses this Court of of Appeal decision.

Today’s Court of Appeal decision is not unanimous – the Lord Chief Justice was in the minority on the key question of whether Rwanda was a safe country for processing asylum claims.

The Supreme Court is (currently) sceptical of “policy” type legal challenges, and is likely thereby to defer to the Home Secretary’s view that Rwanda was a safe country for processing asylum claims – a view also shared by the two judges at the High Court and the Lord Chief Justice.

If the Home Office appeals to the Supreme Court then one suspects it is likely to win.

(Though it must be tempting to the Home Secretary to now abandon this – flawed – policy, and blame the judges.)

Third, any appeal to the Supreme Court will take time. As it has taken until June 2023 for an appeal decision for a December 2022 High Court decision, it may be another six months before there is a Supreme Court hearing and decision.

And in that time, and unless a competent court decides otherwise, all removals will be unlawful as a matter of policy.

If the government wins at the Supreme Court then there would presumably be further delays while individual challenge-proof removal decisions are made.

In other words, the period for any actual removals before a general election next year will be short.

Even with a Supreme Court win, it will be that few if any asylum seekers are removed to Rwanda before a likely change of government.

(Though it cannot be readily assumed that an incoming government will change the policy.)

Fourth, it should not be overlooked by opponents of the Rwanda removals policy that the appeal lost today unanimously and comprehensively on every other ground:

These defeats are not any cause for opponents of the policy to celebrate.

Finally, there is a possibility of a work-around, which the government could adopt.

In the Abu Qatada case it was held by the courts that a deportation to Jordan for a trial was unlawful because of the use of evidence extracted by torture in the Jordanian legal system.

And so the United Kingdom government did a deal that the Jordanian legal system changed its ways so that the deportation could take place.

Abu Qatada was then, lawfully, deported.

(And then acquitted by the Jordanian court in the absence of such evidence.)

This deportation was presented by the United Kingdom government as a win against pesky human rights lawyers – when in fact the government had in reality complied with the judgment.

Similarly, the United Kingdom government may work with the Rwanda government to improve the asylum system, and correct the evidenced defects, so that concerns of the majority of the Court of Appeal are addressed.

No doubt the government would then similarly present any Rwanda removals on this basis as a win against pesky human rights lawyers – but again it would be the government complying with what the court would have approved.

The judgment released today is long – and nobody commenting on the judgment today – politician or pundit – can have read it and properly digested it.

This post is thereby based only on initial thoughts and impressions.

That said, there is reason today for opponents of the Rwanda removals policy to celebrate.

But perhaps not too much.

This has been cross-posted from The Empty City Substack.

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Telling the story of how the “serious disruption” public order statutory instrument was passed

14th June 2023

Here is a story about law-making told in different ways.

The law in question is a statutory instrument made under the Public Order Act 1986 – the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 – which comes into force tomorrow.

The public are sick of Just Stop Oil’s planned programme of deliberate disruptions to daily lives. I’ve just signed an SI to change the law, giving Police power to stop protests causing more than a “minor hindrance” to a journey. This comes into effect at midnight tonight. pic.twitter.com/Zt9V4T0nko

— Chris Philp MP (@CPhilpOfficial) June 14, 2023

By way of background

A statutory instrument is what is called “secondary legislation” and it has the same effect as primary legislation, as long as it is within the scope of the primary legislation under which it is made.

Statutory instruments are, in effect, executive-made legislation. They still have to have parliamentary approval, but they are not open to amendment and rarely have debate or a vote.

Often the parliamentary approval of statutory instruments goes through on the nod, but sometimes they need to have a positive vote in favour.

The government’s version

The first way of telling the story is from the government’s perspective.

The statutory instrument was put to a vote in the House of Commons on Monday with the Home Secretary herself leading the debate.

At the end of the debate there was a contested vote, which the government won:The (elected) House of Commons having shown its approval, the House of Lords did not pass a “fatal” motion against the statutory instrument.

Instead the House of Lords passed a motion (merely) regretting the Statutory Instrument:

The vote (against the government) was as follows:

The House of Lords also had a specific vote on a fatal motion, which was defeated:
And when the official opposition was criticised by for not supporting the fatal motion, a frontbencher was unapologetic:

An unelected House of Lords can’t block an elected House of Commons.

If you don’t want Tory laws to go through Parliament elect a Labour government.

— Wes Streeting MP (@wesstreeting) June 13, 2023

And this is the first way of telling this story: there was a Commons vote; the Lords showed disdain but did not exercise any veto inn view of the Commons vote; and so the statutory instrument became law as the result of a democratic legislative process.

Told this way, the story is about how laws can and are made by such a democratic legislative process

Nothing to see here.

But.

But but but.

The constitutionalist version

There is another way of telling this story.

This account starts with the Public Order Act 2023 when it was a bill before parliament.

At a very late stage of the passage of that bill the government sought to amend it so as to include provisions that were substantially similar to what ended up in the statutory instrument passed this week.

The government failed to get those amendments through the House of Lords. and so they were dropped from the bill before it became an Act.

As a House of Lords committee noted:

The Home Office could not answer these basic questions:For this committee to say that it believes “this raises possible constitutional issues that the House may wish to consider” is serious stuff.

What had happened is that the Home Office, having failed to bounce parliament into accepting these amendments into primary legislation by very late amendments, has come up with this alternative approach.

Told this alternative way, the story is not about how laws can and are made by a democratic legislative process.

Instead, the story is about how a democratic legislative process can be frustrated and circumvented by the executive.

Instead of using primary legislation so as to make substantial (and illiberal) changes to the law, the government has used statutory instrument which cannot be amended or considered in detail, and has used its whipped House of Commons majority to face down Lords opposition.

Plenty to see here.

The story may continue

Yet this is not how the story (told in either way) may end.

The thing about statutory instruments is that, unlike primary legislation, they can be challenged at the High Court.

This means that there can sometimes be a sort of constitutional see-saw: the convenience of using statutory instruments (as opposed to primary legislation) can be checked and balanced by an application for judicial review.

And that is what the group Liberty is doing, and its letter before claim is here.

In essence, the argument is that – notwithstanding the parliamentary approval – the statutory instrument is outside the scope of the relevant provisions of the Public Order Act 1986.

Liberty seems to have a good point, but any challenge to secondary legislation is legally difficult and it is rare that any such challenge ever succeeds.

The moral of the story?

The moral of the story, however it is told, is perhaps about the general weakness of our constitutional arrangements in respect of limitations placed upon rights and liberties.

A government, using wide enabling legislation, can put legislation into place that it cannot achieve by passing primary legislation.

This cannot be the right way of doing things, even if Labour is correct about these illiberal measures having the support of the House of Commons.

There are some things our constitutional arrangements do well – and here we can wave at Boris Johnson and Elizabeth Truss having both been found repugnant and spat out by our body politic.

But there are things our constitutional arrangements do badly – and the increasing use (and abuse) by the government of secondary legislation to do things they cannot (or will not) get otherwise enacted in primary legislation worrying.

And a government casually and/or cynically using (and abusing) wide enabling powers is not a story that usually ends well.

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Understanding the government’s judicial review of the Covid Inquiry

2nd June 2023

The government of the United Kingdom has commenced a legal challenge to the recently established Covid Inquiry – an inquiry that this government had itself established.

In the words of the Covid Inquiry spokesperson yesterday:

“At 16:00 today the Chair of the UK Covid-19 Public Inquiry was served a copy of a claim form by the Cabinet Office seeking to commence judicial review proceedings against the Chair’s Ruling of 22 May 2023.”

This is an unusual judicial review.

Usually judicial reviews are brought against the government, and not by the government.

This is because judicial reviews are the normal legal means by which the High Court can be asked to assess whether a public body is acting within its legal powers.

Here, however, it is the government asking the High Court whether the Covid Inquiry – in effect, another public body – is acting within its legal powers.

Unusual, yes, but not absolutely unprecedented, as Dinah Rose KC – one of the greatest judicial review barristers – has pointed out on Twitter:

This is not the first time the Govt has judicially reviewed its own inquiry. The MoD twice JRed Lord Saville as Chair of the Bloody Sunday inquiry over the protection to be afforded to military witnesses. A High Court judge & Court of Appeal ruled on the decision of a Law Lord.

— Dinah Rose (@DinahGLRoseKC) June 2, 2023

But that said, this judicial review is still unusual.

What is this judicial review about?

From a legal perspective, it is about one word: jurisdiction.

To understand this we need to dig into some of the legal background.

First, the Inquiry was created under the Inquiries Act 2005 – and this makes the Inquiry, in the lovely phrases, “a creature of statute” or “a statutory creature”.

What this in turn means is that any inquiry created under the Act – the Covid Inquiry and otherwise – does not have universal or inherent legal powers.

An inquiry created under the Act only has legal powers within the scope of the Act – what lawyers call the “vires” of the Act.

An inquiry created under the Act thereby cannot do something “ultra vires” the Inquiries Act.

And if an inquiry does a thing ultra vires the Inquiries Act then that thing can be quashed or declared unlawful by the High Court.

Here the government maintains that the Covid Inquiry has done something ultra vires the 2005 Act.

Now we go to the section 21 Notice issued by the Covid Inquiry on 28 April 2023, in which the Inquiry demands various documents from the Cabinet Office.

This Notice is the main target of this judicial review.

This Notice is what the government is primarily asking the High Court to quash.

This judicial review is not the first attempt of the government to dislodge the Notice.

The first attempt was an Application dated 15 May 2023.

This Application was made under a provision of the Inquiries Act which provides:

“A claim by a person that— (a) he is unable to comply with a notice under this section, or (b) it is not reasonable in all the circumstances to require him to comply with such a notice, is to be determined by the chairman of the inquiry, who may revoke or vary the notice on that ground.”

But.

This Application was problematic.

You see, the Application was not actually asking the Inquiry to revoke or vary the Notice – both of which presuppose the Notice was valid in the first place.

No, the Application was telling the Inquiry that the Notice was outside the powers of the Inquiry.

As the Application stated:

“The Inquiry has no jurisdiction to request under rule 9, still less to compel under s.21, the provision to it of unambiguously irrelevant material.”

And the chair of the Inquiry picks this very point up in her ruling (emphasis added and the paragraph broken up for flow):

“I observe at the outset that I am far from persuaded that a wholesale challenge to the legality or vires of a section 21 notice is one that properly falls within the scope of section 21(4) of the 2005 Act.

“Although the application does not make this clear, I infer that it is made under subsection 21(4)(b) of the 2005 Act, which entitles the recipient of a section 21 notice to invite the Chair to vary or revoke the notice on the ground that “it is not reasonable in all the circumstances to require him to comply with [it]”.

“I understand that provision to apply to cases where the recipient of a notice accepts the notice’s validity, but wishes to engage with the Chair as to the reasonableness of complying with it. It does not obviously apply to a situation such as the present, where the recipient of the notice contends that the notice itself is unlawful.”

“The better procedure for raising arguments of that nature is, plainly, an application for judicial review.“

The chair was right – and this response indicates that she and her advisers may understand the scope of the Inquiries Act very well.

The government may have spent substantial public money on instructing the government senior external lawyer to put together a ten-page application, but ultimately the Application was the wrong horse on the wrong course.

A challenge to the jurisdiction of the Inquiry to issue the Notice should be done by judicial review – that is a formal action at the High Court.

Perhaps the government used the Application as a tactic just to get the Inquiry to change its mind, or at least state its legal position expressly – a previous post on this blog described the Application as, in effect, a letter before action.

And the Application did get the Inquiry to set out its legal position explicitly.

But the challenge the government does want to make to the Notice – and also to the Inquiry’s ruling – should be done by means of a judicial review.

Now it is.

And here is the government’s statement of facts and grounds.

What are the merits of the judicial review – that is, will the government win?

To the extent that that the government seeks to rely on the Human Rights Act and privacy rights under Article 8 of the European Convention, the government warrants all the mockery it is getting.

This is the very government that is seeking to repeal the Human Rights Act and make it harder for claimants to rely on Article 8 privacy rights.

But.

There is more to the government’s legal case than that – and there is perhaps a route to the government succeeding at the High Court – or on appeal.

Here we need to go back to the Inquiry being a creature of statute.

This means that it is not open to the Inquiry to do just what it wants and to ask for whatever it wants.

The Inquiry can only do things and ask for things within the corners of the Inquiries Act – as augmented here by the Terms of Reference of the Inquiry.

The government is unlikely to win the judicial review with wide-ranging claims about general principles of “unambiguous relevancy” or otherwise.

If the government does succeed then it will be because that, in this particular case, the correct construction of the Inquiries Act, taken in tandem with the Terms of Reference, mean that, on this one occasion, the Inquiry has done something outside of its legal powers.

If the government can show this, then the Covid Inquiry loses – and the Notice falls away.

But.

The Covid Inquiry will also have been aware of this potential legal challenge when putting the Notice together, and it would seem that the measured content of the Notice and the precision of its requests place the Notice within the scope of the Inquiries Act when read with the Terms of Reference.

In other words, the legal(istic) “prep” of the Covid Inquiry for this potential challenge was started long ago, and – unlike the impression given by the Cabinet Office – not in a rush over the last couple of weeks.

Finally, let us consider the greased piglet.

The former Prime Minister Boris Johnson is currently making more mischief than a dozen lords-of-misrule.

He appears to want to single-handedly sabotage the government’s legal case:

NEW: Boris Johnson says he is sending his unredacted WhatsApps (from May 2021 onwards) to the Covid inquiry direct.

He says he wants to pass the WhatsApps from his old phone to them too pic.twitter.com/bV0DcBrh2v

— Henry Zeffman (@hzeffman) June 2, 2023

On this, let us be careful.

There is industrial-scale misdirection afoot.

Let us wait to see what is actually disclosed – and how the Inquiry assesses that disclosure.

And note in Johnson’s letter, at the seventh paragraph, the deft and camouflaged “relevant” – and also note who he is proposing to conduct this all-important search.

We should not get too excited at such claims.

But that said, the sudden rampaging entry of Johnson into this otherwise delicate judicial review is extraordinary.

This is such an unusual judicial review – and in more than one way.

Disclosure: I am a former central government lawyer.

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Tick tock, tick tock Cabinet Office – the Covid Inquiry stand-off this weekend

26th May 2023

My post on former Prime Minister Boris Johnson and the Cabinet Office lawyers should be ready to be posted on Monday, so in the meantime this post is about the stand-off this weekend between the Cabinet Office and the Covid Inquiry.

To recap: the Covid Inquiry has immense legal powers, and it has exercised one of those powers in serving a formal section 21 notice on the Cabinet Office.

This means that unless it has a legal reason not to do so, the Cabinet Office now has to comply with that request on pain of criminal sanction.

For inquiries under the Inquiries Act are powerful legal creatures, and their formal requests are not to be taken lightly.

See my previous post on this here.

The section 21 notice was dated 28 April 2023.

And you will see in the appendices the requests for information in respect of Johnson.

The deadline for the Cabinet Office to comply with the notice has now been set by the Inquiry chair to be 4pm on 30th May 2023 – that is this coming Tuesday

Remember Monday is a bank holiday.

And today is Friday.

The initial response of the Cabinet Office was to instruct the government’s senior external lawyer – at presumably great public expense – to make a legal(istic) objection to the notice.

The Inquiry chair deftly put that Cabinet Office legal application back in its box by a ruling this week.

There now seems to be four possible outcomes of what is now a stand-off.

1. The Inquiry may extend the deadline again, but there is no evidence this has happened.

2. The Cabinet Office may comply with the request and provide the all information requested by Tuesday.

3. The Cabinet Office may not comply with the request, and it will provide either none of the information requested or not all the information requested – in effect daring the Inquiry chair to commence criminal proceedings which will then presumably be defended or otherwise challenged.

4. The Cabinet Office may make an urgent application to the High Court to either injunct the inquiry or quash the notice (or some other remedy) before the deadline of Tuesday.

If the choice is (4) then there really is not a lot of time.

I understand the Cabinet Office is considering its next step on the question of disclosure of what it unilaterally deems “unambiguously irrelevant” material.

We can bet it is.

But the stakes are now high – and there is not a lot of time to leisurely consider the position.

Unless there is an extension, the Cabinet Office has to decide before Tuesday whether to comply, to challenge, or to risk criminal sanctions.

Presumably the final decision is now with someone sufficiently senior who will then have to account for their decision.

But if the decision is to bring a legal challenge, there is almost no time left.

And if the Cabinet Office does not bring a legal challenge, then the commissioning of that expensive legal application from the so-called Treasury Devil looks a waste of public money.

If that application was sincere then the government’s position is that the Covid Inquiry chair is acting outside of her legal powers.

But if the Cabinet Office do not now go through with a legal challenge then it looks as if that application was made for tactical reasons, simply because the government does not want to disclose the documents.

Which side will blink?

And if the government does not disclose the information requested, will the Covid Inquiry chair commence criminal proceedings against the government?

The impression given by her ruling this week is that she means business.

But how the Covid Inquiry chair responds to anything less than full disclosure by the Cabinet Office on Tuesday will indicate whether that business-like impression is correct.

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“Frankenchickens” and the law

3rd May 2023

Scrolling though Instagram while trying to think of a legal angle on the coronation worth writing about I came across this:

As it happens I have a lot of time for the broadcasting of Chris Packham and Megan McCubbin, and for my fellow Brummie Benjamin Zephaniah, and so I thought this may be an interesting case to write about for a blogpost.

What is being described as a “Frankenchicken”?

According to Zephaniah: “Decades of selective breeding have turned [chickens] into monstrous frankenchickens who can barely carry their own weight, and who lie in crowded barns, being burned by their waste. We should not be treating animals like this.”

The applicant – The Humane League – was kind enough to share their legal arguments with me.

At the heart of this legal case is a paragraph.

It is paragraph 29 in a schedule, in a schedule to some regulations, which are in turn regulations made under an Act of Parliament.

And this paragraph 29 provides:

“29. Animals may only be kept for farming purposes if it can reasonably be expected, on the basis of their genotype or phenotype, that they can be kept without any detrimental effect on their health or welfare.”

(My emphasis added, for a reason which will become obvious.)

The schedule containing this paragraph has effect by reason of regulation 4 of the relevant regulations, and this provides:And these regulations were made under section 12 of the Animal Welfare Act:

It is in this elaborate way that many things are regulated: provisions within provisions within provisions – a legislative pass-the-parcel.

The applicant in this case is contending the government misunderstands paragraph 29.

The applicant says paragraph 29 prohibits the keeping of animals for farming purposes unless it can reasonably be expected that, on the basis of their genotype or phenotype, that they can be kept without any detriment effect on their health or welfare.

The applicant says the government is in turn contending that paragraph 29 does not establish any such prohibition “and, moreover, [the government] disputes that the word “kept” refers to keeping at all”.

(I do not have access to the government’s legal argument.)

The applicant then contends that because the government misunderstands paragraph 29 the government thereby makes two further legal errors.

First, the misunderstanding means that the government has adopted and maintains policies and practices, including a Code of Practice and a system of monitoring and enforcement, founded on legal error – including a policy of non-enforcement.

And second, as the policies and practices do not discriminate against those who in breach of the paragraph, there is a consequential lack of equal treatment between producers.

The applicant’s press release sent to me states:

“The Department of Environment, Food and Rural Affairs (Defra), the defendant in the case, argues that it has no policy which condones or permits the use of Frankenchickens, despite fast-growing breeds being standard in the chicken industry.

“The case also challenges the ‘trigger system,’ Defra’s monitoring system aimed at detecting welfare issues associated with conventional chicken breeds, of which the overwhelming majority will be fast-growing.

“The trigger system requires slaughterhouse vets to report problems, but only if they occur above a given threshold – which The Humane League argues is far too high.

“A final ground of the case argues that the system in place is creating unequal treatment between chicken producers that comply with the law and those who do not.”

This, of course, is not an animal welfare blog – but from a law and policy perspective what is fascinating – and clever – about this case is that the applicant is seeking declaratory relief.

This means the court is being invited to declare the meaning of a legal instrument, in this case paragraph 29.

And this is a perfectly proper thing for a court to be asked to do.

The court is not being asked to directly quash any policy, but to say what a legal provision means.

And a paragraph deep in a schedule to regulations made under a statute is as much a statutory provision as section 1 of any Act of Parliament you can think of.

It also seems that there are differing views on what paragraph 29 means – and the view contended for by the applicant in this case has survived a permission hearing and so can be taken as at least arguable.

This is therefore not a simple try-on, but something the high court thinks is a serious legal question to be heard.

The framing of the case, however, means that if the applicant prevails then it will also pull away the basis of various policies and practices based on that paragraph.

That is an ambitious case to make, but again it is a legitimate and arguable one.

If the government has based policies and practices on a misunderstanding of the law then those policies and practices can fall too.

According to ITV, Defra argues that fast-growing chicken breeds are not inherently condemned to suffer health problems and that there is no scientific consensus saying so.

A spokesperson is quoted as saying:

“We are proud to have some of the highest animal welfare standards in the world. All farm animals are protected by robust animal health and welfare legislation. This sets out detailed requirements on how farmed livestock, including meat chickens, must be kept.

The hearing is today and tomorrow.

I have no idea which side will win – though I am on the side of the chickens – but this is an example of litigation done well by a pressure group – and it is thereby an example of how such public interest litigation should be brought.

You can read more on the Humane League’s campaign here.

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